- Definition, Types and Powers
- Guardianship Reform Efforts
- State Laws
- Guardianship Data
- General Process
Establishment of Guardianships
- Emergency Powers
- Use of Less Restrictive Alternatives
- Determination of Capacity
- Procedural Protections
- Key Issues
Training & Qualifications of Guardians
Guardianship Monitoring
Guardianship Technology
Standards & Model Programs
Guardianship Laws
Adult guardianship is a matter of state law. Guardianship laws typically are part of a state’s laws on probate, trusts, estates and/or fiduciaries. The Uniform Law Commissioners have promulgated three pieces of model legislation that have had significant influence on the development and evolution of state guardianship law: the Uniform Probate Code, the Uniform Guardianship and Protected Proceedings Act and the Uniform Adult Guardianship and Protected Proceedings Jurisdiction Act.
The Uniform Probate Code (UPC), first approved in 1969 and revised several times since, was one of the earliest efforts to promote uniformity of state family property laws. UPC Article 5 pertains to guardianship proceedings. Other articles of the UPC address the succession of property through intestacy, wills, trusts, and other legal mechanisms for the transfer of property. Over time, most states have adopted or adapted portions of the UPC in whole or in part.
UPC Article 5 was revised extensively in 1982. At the same time, the Uniform Guardianship and Protective Proceedings Act (UGPPA) was enacted as a parallel act, free standing from the UPC, to address only guardianship of minors and adults. The UGPPA was revised significantly in 1997 to update procedures for appointing guardians and conservators and strengthen due process protections for persons who are the subject of guardianship proceedings. The following year UPC Article 5 was amended to align with the UGPPA. As of June 2010, at least 20 states have adopted UPC Article 5, the UCPPA, or both.
The Uniform Adult Guardianship and Protected Proceedings Jurisdiction Act (UAGPPJA) is the most recent effort to improve the guardianship process nationwide. The UAGPPJA addresses problems that can arise when the person subject to guardianship proceedings has contacts and or property in more than one state. Jurisdictional conflicts can unnecessarily prolong guardianship proceedings, increase costs for the person and the guardian, and present greater opportunities for abuse and financial exploitation of the person. The UAGPPJA sets out rules for determining which state has jurisdiction over a particular guardianship proceeding at any given time. As of June 2010, 18 states and the District of Columbia have implemented the UGPPJA and legislation to adopt the UGPPJA is pending in an additional eight states.
Although all states have not adopted UPC Article 5 or the UGPPA, many provisions of state law governing guardianship proceedings are substantially similar across most jurisdictions. Some common elements of guardianship proceedings include:
- Appointment process
- Differentiating between a guardian for the person’s personal affairs and a guardian to protect the person’s estate or property (which may be called a conservator in some states)
- Ability to serve as guardian of both the person and the property
- Requirement of guardian of person or property to file a bond (may be waived for guardian of the person)
- Requirement to file an initial report on the protected person’s personal and/or financial status; the required content of report is substantially similar in Uniform Probate Code jurisdictions
- Requirement of guardians of the person to file a report of the protected person’s general condition, health status, and continued need for guardianship protection, typically annually
- Requirement of a guardian of the estate or property to file a financial accounting, typically annually
- In Uniform Probate Code jurisdictions, the court may appoint a person (visitor) to monitor and report on the condition of the protected person; visitors typically are trained volunteers
- Authority to remove a guardian that is not performing his or her duties to protect the best interests of the protected person.
Additional Online Resources
National map of guardianship statutes
American Bar Association Commission on Law and Aging updates on state guardianship legislation
National Guardianship Association
Nine Ways to Reduce Elder Abuse Through Enactment of the Uniform Adult Guardianship and Protective Proceedings Act
Uniform Law Commissioners